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A discussion of unmarried couples must distinguish between two categories: persons who live
together (whether heterosexual or homosexual partners) and persons who are registered domestic partners (i.e., "RDPs").
Since 2005, under California law, RDPs have legal rights and responsibilities like married couples; but not so under federal law. Let's examine each category separately.
Unmarried persons who just live together – notwithstanding their confidential relationship – are "legal strangers" under the law. All property is each partner's separate property, even joint tenancy property.
Mutual contractual arrangements – such as cohabitation agreements and tenants in common agreements – govern each partner's rights and responsibilities to each other.
Reasonable and detrimental reliance by one partner on the other partner's promises, fair play under common law, often decide the outcome of any lawsuit for breach of contract.
Durable powers of attorney and health care directives must be in place to allow each partner control over the other partner's financial affairs and health care decisions during disability. Otherwise, avoidable legal battles (e.g., court conservatorships) over control may ensue between one partner's natural family and the other partner.
If real property is owned as tenants in common, a tenant's in common agreement is very advisable to
help manage their undivided property rights. Each partner may transfer their property rights into their own living trust. Joint tenancy may be used but it has significant drawbacks.
Next, RDPs, as of 2005, California RDPs have the same rights and Responsibilities to each together as married people. But the contrary remains true under federal law.
The Defense of Marriage Act ("DOMA") still treats California RDPs as legal strangers. The federal/state disparity has created some interesting challenges.
For example, although RDPs now have community property ("CP") rights just like married persons – with each RDP entitled to equal control over the CP assets – nonetheless, under DOMA, it appears that the creation of community property between RDPs would be treated as gifts as between legal strangers, and so subject to the Gift Tax.
Accordingly, IRS gift tax returns are required when such annual gifting exceeds the federal annual gift tax exclusion amount (i.e., $13,000 in 2009).
Moreover, RDPs do not get the "double step-up in basis" on CP assets when the first RDP dies, and so the surviving RDP may have to pay capital gains on appreciated assets sold shortly after the first RDP dies (whereas heterosexual married persons might avoid this due to the double step up in basis).
Also, unlike living trusts created by heterosexual married couples, living trusts created by RDP's must have taxpayer identification numbers and file federal annual income tax returns (i.e., IRS Form 1041's). Married couples, however, simply report trust income on their annual tax return(s) using their social security numbers.
The foregoing difficulty can be solved if each RDP creates his/her own living trust to hold title to each RDPs own property rights. If CP assets are involved, the other RDP must still be co-trustee to ensure that each RDP has joint control over the CP assets as required by California law.
Furthermore, RDPs who are joint tenants must keep meticulous records of their contributions towards purchasing joint tenancy property. Whereas a surviving married spouse is presumed to have contributed half of the purchase costs of a jointly held asset, federal law presumes that the deceased RDP paid everything.
Lastly, there are some planning opportunities available to RDPs which are unavailable to married persons. Specifically, as RDPs are not married the IRS will not make RDPs prove that sale transactions between themselves are at fair prices.
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 1st St., Lakeport, California. Dennis can be reached by e-mail at
Lakeport Police arrested Brian David Drawdy, 40, of Kelseyville and Gloria Jean Mendez, 46, of Cobb Thursday evening, according to Lt. Brad Rasmussen.
Mendez is being held on a misdemeanor traffic warrant out of Siskiyou County, while Drawdy is charged with felony second degree robbery and felony use of force with great bodily injury likely to result because he allegedly hit a female Kmart employee with his car.
“Our investigation reveals that he intentionally struck her with the vehicle,” Rasmussen said.
Rasmussen said two Lakeport Police units were dispatched to the incident at around 3 p.m. The situation initially was reported as a hit and run of a pedestrian at Kmart on S. Main Street.
As officers were responding they received additional information that the pedestrian actually was a Kmart loss prevention employee and that she had been struck by the vehicle – a blue Toyota hatchback – as it fled the store's parking lot, Rasmussen said.
Rasmussen said the store employee, whose name was not released, had been working alone in loss prevention on Thursday. She obtained surveillance evidence that Drawdy and Mendez allegedly had been concealing items in their clothing before leaving the store without paying for the merchandise, which was worth about $20 total.
The staffer followed Drawdy and Mendez out of the store and into the parking lot, where she contacted them at the vehicle and interviewed them about the merchandise, Rasmussen said.
Mendez and Drawdy gave the store employee conflicting statements about buying the materials. Rasmussen said Mendez got in the car's passenger side, stating she was looking for the receipt, while Drawdy stood outside of the vehicle's passenger side.
When the Kmart staffer walked around the rear of the car toward Drawdy, he jumped into the car and put it into reverse, traveling at a high rate of speed backwards toward the woman, Rasmussen said.
Rasmussen said the Kmart employee was thrown up onto the back of the vehicle, where she stayed while Drawdy kept the car in reverse for another 20 to 30 feet. He then changed direction to take off, and the woman was thrown off the back of the car.
He said the woman was uninjured after being hit by the car and then thrown to the ground.
Rasmussen said witnesses at the scene described the incident in detail, and one of them even followed the vehicle to Kelseyville, where they stopped to report the vehicle to the California Highway Patrol.
A CHP unit located the Toyota traveling up Bottle Rock Road toward Cobb, said Rasmussen. When the CHP officer got behind the car, Drawdy turned onto Harrington Flat Road and drove evasively for a short time before yielding.
Both Mendez and Drawdy remained in the Lake County Jail Thursday night. Bail for Mendez is set at $5,000, while Drawdy is being held on $25,000 bail.
E-mail Elizabeth Larson at
The agency said that the noncompliance “has caused, or was likely to cause, serious injury or death to patients,” and in all cases constituted an “immediate jeopardy” for patients.
Sutter Lakeside Hospital in Lakeport and St. Helena Hospital Clearlake each received $25,000 penalties, the Department of Public Health reported. It was the first time such penalties were assessed to either facility, which reported the issues to the state.
The situations with the local hospitals both occurred last year, according to Department of Public Health documents.
Representatives from both of the local hospitals – which were notified of the assessments earlier this week – said they've taken action to address the situations that led to the penalties.
Other hospitals receiving penalties were Arrowhead Regional Medical Center, Colton; Children’s Hospital of Orange County, Orange; Enloe Medical Center, Chico; Hoag Memorial Hospital Presbyterian, Newport Beach; Kaiser Foundation Hospital and Rehabilitation Center, Vallejo; Los Angeles County/University of Southern California, Los Angelesy; Mark Twain, St. Joseph Hospital, San Andreas; Mercy San Juan Medical Center, Carmichael; South Coast Medical Center, South Laguna; and Southwest Healthcare Systems, Riverside.
Facilities that are assessed the penalties must immediately implement a plan of correction to prevent future incidents, according to the state.
“It is imperative that hospitals promptly respond to the issues identified by the Department of Public Health,” said Kathleen J. Billingsley, RN, the deputy director or the Department of Public Health's Center for Health Care Quality.
This is the eighth time the Department of Public Health has issued groups of penalties against medical facilities under the auspices of recent state legislation that aims to improve medical procedure compliance, Billingsley said.
In all, they've assessed 98 penalties on 67 different hospitals, for a total amount of $2.45 million. Not all of the penalties have yet been paid, she noted.
Billingsley said after a violation is substantiated, it's required that the facility immediately fix it and create a corrective plan.
The goal, she said, is to improve health care and eliminate surgical and medical errors.
In eight of the 12 cases reported Thursday – including Sutter Lakeside and St. Helena Hospital Clearlake – penalties arose from failure to follow surgical policy and procedures, which resulted in foreign objects, such as surgical sponges or instruments, being left inside patients during surgery.
Other hospitals were cited for failing to safely administer medications or continuously monitor patients, not following procedures for fall prevention or not complying with minimum staffing requirements for nursing care.
Sutter Lakeside case identifies policy issues
In the case of Sutter Lakeside, a female patient was admitted for a paraesophageal hernia repair and graft surgery that took place on May 21, 2008.
Sponges and instruments were counted both before the procedure and prior to closing, but seven days later an imaging report revealed a mini laparotomy sponge had been left in the patient's left upper abdomen. The sponge was surgically removed without difficulty, the report noted.
A review of hospital procedures found that the situation resulted because the sponge count policy had not been properly performed.
Diane Pege, M.D., Sutter Lakeside's vice president of medical affairs, said the state visited the hospital in June of 2008 and issued a report his past March in which it cited Sutter Lakeside for the occurrence.
“Our greatest priority is, and always will be, patient safety,” Pege said. “As such, Sutter Lakeside took immediate and aggressive steps to prevent this from happening in the future. We did not wait for the anticipated state visit, but promptly reviewed and revised our current protocols and procedures.”
The hospital was placed on an “immediate jeopardy” standing which Pege said put into place is a regulatory process to assure that the problem was immediately corrected. She said that, due to the hospital's prompt response, immediate jeopardy was lifted a short time after it was implemented.
Pege noted that the California Department of Public Health, other health care regulatory agencies and hospitals across the United States are giving special attention to the issue of “retention of foreign objects,” which she said is an infrequent occurrence at hospitals such as Sutter Lakeside, but one that requires special protocols and procedures to minimize occurrences.
St. Helena-Clearlake issue also involved procedures, surgery
St. Helena Hospital-Clearlake's case involved leaving part of an instrument in a patient's intestine during surgery.
“St. Helena Hospital Clearlake follows meticulous standards to prevent medical errors,” said spokesman Jeff Davis. “Following this particular incident, which we self-reported to the California Department of Public Health, a thorough investigation was conducted by the hospital, and our findings could not determine if the error was caused by medical personnel or related to the specific surgical device used during the procedure.”
The surgery, which removed the lower part of a male patient's colon, was performed on Oct. 28, 2008, according to the state report.
The physician was using a disposable stapling instrument to join the edges of the remaining portion of colon with surgical staples. The instrument came in two parts – one was placed above the upper cut edge of the remaining colon and the other part was inserted through the anus and placed at the lower cut edge before the instrument was fired.
However, when the instrument was removed, the surgical team didn't notice that one of the parts of the instrument was missing.
Four days later, the patient had a bowel movement and passed the upper portion of the stapling device, but did not experience increased pain or suffer any injury.
The physician, who had performed 50 such procedures, said he had not noticed the instrument was not complete when he handed it off to the circulating nurse. The report found that the hospital had failed to follow surgical policies and procedures regarding the accounting of all surgical equipment.
Chief Medical Officer Marc Shapiro, MD, said the hospital has implemented guidelines developed by the World Health Organization to add an additional layer of safety to all surgical procedures performed at the hospital.
“We are keenly focused on improving patient safety through the use of system improvements, patient-safety checklists, safety-enhancing practices and information technology,” said Davis.
Davis said patient safety and quality care is the hospital's primary focus. “We sincerely regret that this error occurred and are thankful that no harm was caused to our patient.”
Penalties to be used for improving health care
Billingsley said the money from the assessments is kept in a fund to assist in improving health care quality. To use it, the Department of Public Health must have the Legislature's approval.
Recently, the agency met with the California Hospital Association to ask for suggestions on how to reduce adverse events or medical errors, said Billingsley.
The agency will use that information in formulating a quality improvement effort that it can then take to the Legislature for funding approval through the appropriations process, Billingsley said.
She said officials have seen a dramatic improvement as a result of the work they've done through evaluating and assessment facilities. “I am extremely proud of the positive outcome we have had with the administrative penalties,” he said.
Billingsley cautioned, however, “We can't change things overnight.”
The administrative penalties were issued under authority granted by Health and Safety Code section 1280.1 which took effect January 1, 2007.
Facilities that received the penalties currently are in a 10-day appeal period, the Department of Public Health said. If they don't appeal and pay the penalties, they are only required to pay 65 percent of the assessment, or $16,250.
Silva said Sutter Lakeside will not appeal the assessment. Davis did not indicate if St. Helena Hospital Clearlake would appeal.
Going forward, facilities will face a doubling of the current fine amounts.
Officials said Gov. Arnold Schwarzenegger last year legislation to significantly increase the fine for administrative penalties for violations or deficiencies constituting an immediate jeopardy to the health and safety of patients.
The new law, which took effect Jan. 1, increases fines from $25,000 to $50,000 for the first violation.
The cases reported Thursday are not subject to the new fine amounts because they occurred in 2007 and 2008, before the new law took effect, the Department of Public Health stated.
E-mail Elizabeth Larson at
The Lakeport Fire Protection District reported that it responded to a reported structure fire on Mission Rancheria Road just after 10 p.m. last Sunday.
A report from firefighter/paramedic Brian Hajik explained that the agency sent one truck company, one engine company and one chief officer, with Kelseyville Fire Protection District providing one mutual aid engine company.
While units were responding, dispatch advised that an off-duty California Highway Patrol officer was on scene and advising of a fully involved mobile home with no occupants on site, according to Hajik.
The first arriving apparatus was Lakeport Fire Protection truck 5011, which found a 12-foot by 60-foot mobile home fully involved with an additional residence immediately threatened, and extension to the wildland, Hajik reported.
Captain Bob Holbrook assumed command as hose lines were stretched to protect an adjacent structure and begin defensive operations, said Hajik.
Hajik said Engine 5012 swiftly established a water supply for both apparatus and began additional suppression to both the involved structure and wildland fire.
The fire was contained in 12 minutes; however the home was deemed a total loss, Hajik said.
He reported that units remained on scene until 11:30 p.m. for salvage and overhaul.
Fire cause is currently under investigation and no injuries were reported, according to Hajik.
The woman died Sept. 1, according to a Thursday statement from Mendocino County Public Health Officer Dr. Marvin Trotter.
Trotter said the H1N1 virus was confirmed when the woman was admitted to Ukiah Valley Medical Center 10 days prior to her death.
He said the woman had significant underlying medical issues, and was one of the county's 12 prior confirmed cases.
“Approximately half of the deaths with H1N1 have longstanding or significant underlying medical issues,” said Trotter. “The highest risk categories for death appear to be obesity and asthma.”
As of Sept. 1, there have been 144 H1N1 related deaths in California and 1,663 hospitalized cases, the California Department of Public Health reported.
Nationwide, there have been 8,843 hospitalized cases and 556 deaths, according to the Centers for Disease Control.
Gov. Arnold Schwarzenegger's office issued a Wednesday statement noting that state public health and emergency response officials have been planning for the further escalation of the disease and the rollout of a vaccination program.
The Centers for Disease Control reported that the H1N1 vaccine is scheduled to be allocated in mid October.
Officials continue to urge basic precautions to prevent the spread of the flu, including covering your nose and mouth with a tissue when you cough or sneeze; washing hands with soap or alcohol-based hand cleaners after sneezing; avoiding touching your eyes, nose or mouth, which can spread germs; avoiding close contact with sick people; and staying home if you are sick for seven days after your symptoms begin or until you have been symptom-free for 24 hours, whichever is longer, to keep from infecting others and spreading the virus further.
LAKEPORT – A three-car collision on Wednesday resulted in injuries for those involved, including a county Office of Emergency Services employee.
The crash occurred at about 11:30 a.m. at the intersection of 11th Street and N. Forbes, according to Lakeport Police Lt. Brad Rasmussen.
The first impact was within the intersection, with the second occurring just west of the intersection and N. Forbes, Rasmussen said.
Rasmussen said the Lakeport Police Department wasn't handling the report or investigation, which the city and county had agreed should be turned over to the California Highway Patrol.
The CHP could not be reached for comment on the crash on Wednesday afternoon.
City resident Howard Holtz, who witnessed the crash, said a white truck was traveling north on N. Forbes, and either ran the stop sign, or entered the intersection too soon, hitting the back of a black car that had been traveling west on 11 Street.
That first collision spun the black car around and into an oncoming silver Taurus traveling east on 11th, Holtz said. The two cars then dove-tailed onto the sidewalk, with only minor damage to the house caused by the bumper flying into the house.
Holtz said the driver of the black car was uninjured. He said the pickup's driver walked slowly to a stretcher and was taken to the hospital, as was the Taurus' driver, who Holtz said was carefully placed on a stretcher.
Rasmussen said none of the injuries were life-threatening.
The Taurus, an unmarked county car, was driven by Jerry Wilson of the county's Office of Emergency Services, which is within the Lake County Sheriff's Office.
Sheriff Rod Mitchell said late Wednesday that Wilson was doing OK. “He's got some minor injuries.”
Rasmussen said the county vehicle sustained significant damage. The black car also appeared to have received serious damage, although the older model Chevrolet pickup appeared OK.
The initial investigation showed no evidence of alcohol or drugs being involved with the cause, Rasmussen said.
E-mail Elizabeth Larson at
